[Redacted], Dominic S., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Oct 26, 2022

Appeal No. 2022003202 (E.E.O.C. Oct. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dominic S.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2022003202 Hearing No. 570-2016-00058X Agency No. FBI-2014-00296 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 4, 2022, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Section Chief at the Agency’s Initial Clearance Section (ICS), Security Division in Washington, D.C. On January 13, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2022003202 2 1. on the bases of race (African American), sex (male), and age (52) when on May 2, 2014, Complainant was removed as Section Chief of the ICS and assigned to work on special projects; and 2. in reprisal for prior protected EEO activity when: a. on June 30, 2014, Complainant learned that he was not recommended for a Deputy Assistant Director position in the Facilities and Logistics Services Division or the Special Agent in Charge position in the Jackson Division; b. on September 22, 2014, Complainant received an “Unsatisfactory” for his performance appraisal report; and c. in mid-September 2015, Complainant was removed from the Senior Executive Service (SES).2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge. Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed, and Complainant filed a brief in support of his appeal. The Agency did not respond to Complainant’s appeal. ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 2 Complainant requested a reassignment to a GS-13 Special Agent position in response to the proposed removal from the SES. Report of Investigation at 139-40. 2022003202 3 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on his age and race, and in reprisal for prior protected EEO activity, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions; namely issues with Complainant’s performance. Complainant’s first-line Supervisor explained that ICS was responsible for conducting background investigations to determine suitability and issuances of security clearances. At the start of fiscal year 2014, the Resource Planning Office (RPO) issued recommendations for increased effectiveness and efficiency; and the Agency significantly increased its hiring goals, which would necessitate the completion of background investigations and issuances of security clearances. ROI at 148-150. The Supervisor stated that they assigned Complainant to implement the RPO plan for the reorganization of ICS and make additional changes to address insider threats. Complainant failed to meet the deadline to implement the RPO plan, which had a significant impact on the hiring process. The Supervisor averred that they gave Complainant repeated instructions, but he was unable to facilitate or lead change in a rapidly changing environment. Due to a lack of confidence in Complainant, the Supervisor was tasked to running the background investigation process, and she learned that Complainant had given instructions to his employees that undermined her directives. The then Assistant Director (AD1) told the Supervisor to get Complainant out of ICS immediately. ROI at 151-4. AD1 added that Complainant’s performance issues included being routinely late on his assignments and submitting poorly written work products. ROI at 164. The Supervisor added that employees complained about Complainant; for example, that Complainant instructed them not to go above his head and failed to make decisions. The Supervisor met with Complainant on May 2, 2014, for his mid-year progress review, and she informed him that he was being removed from his Section Chief position for undermining the goals of the Security Division, and he was being assigned to work on special projects (claim 1). ROI at 156. 2022003202 4 Regarding claim 2(a), another Assistant Director (AD2) informed Complainant in June 2014 that she had not recommended him for promotion to a Deputy Assistant Director position in the Facilities and Logistics Services Division or the Special Agent in Charge position in the Jackson Division due to his performance deficiencies. Specifically, AD2 noted that she observed Complainant’s delays or failures to improve Standard Operating Procedures by the established deadlines; failures to deliver needed products in a timely manner; and delays in delivering necessary documents. ROI at 171-2. The Supervisor stated that Complainant did not complete the assigned special projects and in one instance, put his name on a document that was written entirely by another employee and attempted to take credit for the work. The Supervisor subsequently gave Complainant an “Unsatisfactory” performance rating in September 2014 (claim 2(b)). ROI at 157. For claim 2(c), the Supervisor noted that she did not participate in the demotion of Complainant but drafted a recommendation to remove him from the SES. ROI at 159. Another Assistant Director (AD3) approved an electronic communication regarding Complainant’s removal from the SES. AD3 stated that it was clear that the prior actions were taken due to Complainant’s performance. ROI at 185-6. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). On appeal, Complainant argues that the Supervisor is a “proven liar,” who took steps to remove him as a witness of her misconduct and discriminated against him. Complainant avers that the Supervisor was terminated following an investigation by the Office of Inspector General regarding the Supervisor’s involvement in matters related to a contractor who employed her husband and failed to report her husband’s income in her ethics filings. However, even crediting Complainant’s assertions that the Supervisor was not credible, we find he did not provide evidence to show that any of the other management officials, who consistently testified that there were issues with Complainant’s performance, were not truthful. In addition to the affidavits by the three Assistant Directors in the Security Division, an Assistant Director in the Human Resources Division averred that Complainant requested a higher-level review of his performance appraisal, and the Executive Assistant Director sustained the rating. Further, all performance appraisals are evaluated by the Performance Review Board (PRB), which is a panel of executives from the various components of the Agency. The PRB reviewed Complainant’s performance appraisal and recommended an overall rating of Unsatisfactory. ROI at 178-9. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent 2022003202 5 evidence of unlawful motivation. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence of unlawful motivation for the Agency’s actions. Accordingly, we find that Complainant did not establish that the Agency discriminated against him based on his age or race, or in reprisal for prior protected EEO activity. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant did not establish discrimination based on his age or race, or in reprisal for prior protected EEO activity. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2022003202 6 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. 2022003202 7 The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations October 26, 2022 Date